Tuesday, March 10, 2009

Vacated But Not Reinstated

An attorney was disbarred in New York as a result of a felony drug conviction. He participated in court-ordered treatment which resulted in the reduction of the felony conviction to a misdemeanor offense. He then moved to vacate the order of disbarment. The Departmental Disciplinary Committee agreed to vacatur but filed a cross motion to impose interim suspension rather than immediate reinstatement because the misdemeanor involved a serious crime. There had been no fact-finding in connection with the disbarment order, which had been automatic as a result of the felony conviction.

The New York Appellate Division for the First Judicial Department agreed with the committee's position and directed prompt consideration of the appropriate final discipline for the underlying conduct:

In this case, respondent's misdemeanor conviction under Penal Law § 220.03 does not meet the definition of a "serious crime" as set forth in Judiciary Law § 90(4)(d). Nevertheless, under the present circumstances, we find the Committee's cross motion for an interim suspension, followed by the possible filing of formal charges for respondent's underlying criminal conduct, to be appropriate. Moreover, given the procedural posture of this matter and the interests of judicial economy, the Committee would not oppose referral of the matter directly to a Hearing Panel for a hearing on formal charges, thereby bypassing a Referee's hearing. As the Committee points out, Hearing Panels frequently serve as the initial fact finders in "serious crime" and reinstatement matters and, since this matter involves issues akin to those frequently raised in those proceedings, a Hearing Panel would be capable of reviewing the facts of the case and making recommendations as to a final sanction.

The court noted that the attorney had not practiced since his 1994 guilty plea and had opened a gourmet sandwich shop. (Mike Frisch)


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